Watching movies and TV shows, you might believe that if police ever arrest you in Canada, all you have to do is tell them that you want a lawyer and that will be enough to end an interrogation. Unfortunately, that’s not the case.
In fact, there are limitations to your right to counsel in Canada that can severely damage your case if you don’t know how to use your rights. Keep reading to learn how to protect your rights to a Toronto criminal defence lawyer you can trust.
What is the Right to Counsel Definition in Canada?
The Canadian Charter of Rights and Freedoms outlines the right to counsel under section 10(b), which states that “Everyone has the right on arrest or detention… to retain and instruct counsel without delay and to be informed of that right.” While the wording of the section is straightforward, understanding how it applies in the real and messy world of criminal investigations and prosecutions is anything but.
To get a clearer picture of how the right to counsel works in Canada, start by reading section 10(a) of the Charter and then following it with 10(b):
- Everyone has the right on arrest or detention:
- to be informed promptly of the reasons therefor;
- to retain and instruct counsel without delay and to be informed of that right;
In other words, if the police want to detain you while they investigate a crime or arrest you for a crime, they must inform you that you are being detained or arrested, the reason why and that you have the right to “retain and instruct counsel without delay.” But what does that mean exactly?
Generally speaking, your rights in criminal cases, e.g., like breaking probation rules in Canada, come from laws that federal and provincial governments pass. How to interpret and apply those rights is decided by the courts. So to know what rights you truly have when you’re in the middle of a criminal investigation, including your right to counsel, you have to know what the courts have said about them, even if you don’t know where these rules came from.
The Supreme Court of Canada is the highest court in the land and its decisions are binding on all courts. It has heard and decided on numerous cases based on section 10(b) that have shaped and defined the right to counsel in Canada and continues to hear and rule on those rights regularly.
So What Does the Right to Counsel Allow Me to Do If I’m Detained or Arrested?
The right to counsel, as defined by Supreme Court cases basically means that if you are arrested or detained, the police should inform you of your right to speak to counsel and provide you with a reasonable opportunity to do so. They will likely search you first, but how they are allowed to conduct that search changes depending on whether you are being detained or are under arrest.
If you are simply being detained, police can only pat you down to check for weapons. They are not allowed to go through your pockets, bags or search your vehicle. If you’re under arrest, police will likely handcuff you and are allowed to do a more thorough search. They will also process you through their booking procedure.
Here are the crucial points to remember about your right to counsel at this stage:
- As soon as you are informed of your arrest or detention and right to counsel, tell the police that you wish to speak to counsel as soon as possible and do not say anything else.
- Police have to inform you of your right to counsel, but they aren’t required to accommodate it unless you ask to speak to a lawyer.
- If you do ask to speak to counsel, the police should not question you until you do.
- If you don’t tell them you wish to speak to counsel, police can keep questioning you, and they likely will.
- You can call any lawyer of your choice or someone else to help you find one.
- If your lawyer doesn’t answer, police should allow you a few more tries. If you still can’t reach them, you can call another lawyer or the Legal Aid duty counsel who is available 24/7. The police must provide you with the number.
Knowing these rights is as important as knowing “do you have to identify yourself to police in Canada?” These are your rights to legal counsel when you do reach a lawyer:
- You have the right to speak to your lawyer in private.
- You can speak to your lawyer as long as needed to understand their instructions.
- If you don’t understand your lawyer’s advice, or you’re not satisfied with it, tell the police immediately and ask to speak to another lawyer and say nothing else. You do not have to explain why you don’t feel the advice was helpful.
- They might not allow you to try contacting another lawyer, but it’s essential to get it on the record and to keep repeating it if necessary.
- You have the right to remain silent, but police are not obligated to inform you of that right, or respect it.
Don’t say anything until you have spoken to a lawyer. Police use interrogation tactics that are designed to make anything you say prove your guilt – especially for crimes they take take seriously like a charge under the Criminal Code of Canada for Uttering Threats. They can also twist what you’ve told them, even if it is the truth, in a ways that can ruin your credibility at trial.
Unlike the U.S. Constitution’s right to counsel under the fifth amendment, neither section 10(b) of the Charter nor the right to counsel allowed by Supreme Court cases allows for your lawyer to be present with you during an interrogation. That means that after you’ve spoken to your lawyer it could be hours or days before you speak to them again and the police will take every opportunity they can to get a statement from you that seals your conviction.
The Right to Effective Assistance of Counsel
In Canada, everyone has the right to effective assistance from counsel and it’s considered a principle of fundamental justice. If a laywer fails to provide their client with adequate representation, they were essential denied a fair trial.
In those situations, the verdict may be overturned. The test for overturning a verdict due to ineffective assistance of counsel requires that:
- the counsel’s performance was lacking to the point of incompetence; and
- counsel’s performance impacted the defence to the extent that their client was denies their right to a fair trial that resulted in a miscarriage of justice.
Don’t take chances with your freedom and your future. Jeff Reisman is a skilled and respected criminal defence lawyer and former prosecutor.